Lawyers in Apple-Samsung Fight Try For Simple Themes

Scott Graham

The Recorder

08-21-2012

SAN JOSE — It's an intriguing gambit. Samsung, a Korean company, argued to a jury here Tuesday that Cupertino-based Apple is threatening to ruin the culture of Silicon Valley.

"Think about Silicon Valley back in the day," Samsung attorney Charles Verhoeven told the nine-member federal court jury, describing what he called the Valley's culture of free enterprise. "Your decision could change all that.

"Rather than compete in the marketplace, Apple is seeking a competitive edge in the courtroom" with heavy-handed patent litigation, the Quinn Emanuel Urquhart & Sullivan partner contended.

Apple Inc., meanwhile, seemed to have a more natural story to tell as the tech giants wrapped up their four-week trial over tablet and smartphone design and functionality.

"Steve Jobs started the iPhone development project in 2003," Morrison & Foerster partner Harold McElhinny told the jury. By 2007 the company was selling a smartphone that Time magazine hailed on its cover as the invention of the year. Before long, Samsung Electronics Co. was ripping off Apple's four years of "hard work and ingenuity" by "copying the world's most successful product."

McElhinny asked for $2.75 billion in damages, adding that Samsung had "disrespected" the trial process with none of its executives "willing to come here from Korea and testify under oath."

Tuesday's proceedings began with an excruciating hearing in which U.S. District Judge Lucy Koh dutifully read two hours' worth of jury instructions. "I need everybody to stay conscious during the reading of instructions, including myself," the judge jokingly admonished.

The judge had an easier time of it in the afternoon, as not a single objection was lodged during at least the first three hours of closings.

McElhinny took a literally straight-ahead approach to his argument, leaning across the lectern and facing the jury directly throughout the main portion of his presentation. Hair and tie slightly askew, McElhinny's professorial style was neither spellbinding nor boring.

The veteran IP litigator stressed "the historical documents" in the case — not something "a law firm created" but patents and internal company emails that he said showed Samsung willfully copied the design and functionality of the iPhone and iPad with its Galaxy line of products, among others. These statements, he said, were made "in real time, not today, not at this trial where so much is at stake."

Those documents showed that Apple developed a "revolutionary" phone that eclipsed Samsung's offerings as "the most stylish phone in the world."

Disputing Samsung's claim that the iPhone design was obvious, McElhinny said "everyone, even Samsung, thought that the iPhone changed the world.

"Samsung was the iPhone's biggest fan," he said. "When they couldn't compete with it, they copied it."

Whereas McElhinny's argument was infused with storytelling, Verhoeven's closing was more of a point-by-point rebuttal of testimony by Apple's witnesses, particularly where he said Apple's "paid experts" had made admissions favorable to Samsung. "That is very credible evidence, perhaps the most credible evidence you're going to see," Verhoeven said.

Standing at the side of the lectern and facing the exhibits monitor as often as he did the jury, Verhoeven at times seemed to be creating a greatest hits of his team's cross-examinations — perhaps not surprising given that Samsung used much of its trial time for cross.

Apple expert Peter Bressler, for example, conceded that he did not know if any consumers would have been deceived into thinking they were buying an Apple phone when actually buying Samsung, according to Verhoeven. "That's it," Verhoeven said. "They can't meet the standard."

Apple's experts, despite being paid millions for the testimony, did not conduct any research or surveys to prove that consumers were deceived, and "couldn't be bothered to measure the radii" of the buttons on the competing phones to see they were different sizes, Verhoeven asserted. "That's not credible testimony, I submit," he told the jurors.

Verhoeven showed a few internal documents of his own, including one that he said proved Samsung was working on a tablet before Apple announced the iPad. "You know how secretive Apple is," he said. "Nobody knows what they're working on until they announce it."

As for Apple's request for $2.75 billion in damages, that's "a ridiculous number," Verhoeven said, that doesn't reflect anything close to lost profits.

"They know, like you know and I know," Verhoeven told the jury, "that no one is ever going to be confused when they buy a very expensive phone with a multiyear contract."

Jurors were expected to begin deliberations Wednesday.